“Officer, He’s Just Happy to See You”

Philly, the ACLU and the Fourth Amendment

Mar. 25, 2016 (Mimesis Law) — The battle between the City of Brotherly Love and the Pennsylvania ACLU over reforming Philly’s troubled police department is set to heat up after Tuesday’s release of the ACLU’s sixth annual report on the PPD’s take on stop-and-frisk.

The PPD’s legal woes began in November, 2010, when the ACLU filed a class action, Bailey v. City of Philadelphia, in federal court on behalf of eight minorities men who were allegedly “stopped by Philadelphia police officers solely on the basis of their race or ethnicity.”

In Terry v. Ohio (1968), the Supreme Court ruled that for a stop to pass Fourth Amendment scrutiny, it must be based on a “reasonable suspicion” of criminal activity, supported by articulable facts. Terry also provides for a frisk if the officer has reasonable suspicion that the detained person is armed and dangerous. As such, a constitutional stop doesn’t automatically give rise to grounds for a frisk. Both stops and frisks constitute seizures under the Fourth Amendment.

The ACLU argued that the PPD violated plaintiffs’ Fourth and Fourteenth Amendment rights, by stopping and frisking them in the absence of reasonable suspicion and singling them out for stop and frisks because of their race. It further claimed that the PPD’s stop-and-frisk policy has led to the constitutional rights of thousands of other Philadelphians being violated.

In its 2016 report, as in all previous installments, the ACLU argues that the PPD continues to subject Philadelphians to unconstitutional stop and frisks, despite its promise to reform. The scope of the alleged Fourth Amendment violations is alarming: though the PPD got its best score yet for stops, with only 33% deemed unconstitutional (down from over half in 2011), its rate of allegedly unconstitutional frisks actually went up relative to last year, from 53% to nearly 58%.

The ACLU also alleges that the PPD continues to single out minorities, especially African-Americans, for stop and frisks, to such an extent that nonracial factors like age, gender, or crime rates fail to explain the disparity by themselves.

According to the report, many PPD frisk reports claim the officer conducted a frisk because he saw a “bulge” in the suspect’s pocket. The PPD’s hit rate for guns and other contraband is extremely low: of the 2380 stops in the ACLU’s random sample, only 6 (0.25%) led to the recovery of a firearm. “Bulges” almost always turn out to be cell phones or wallets.

Compared to probable cause, reasonable suspicion is easy to get: in Illinois v. Wardlow (2000), the Supreme Court upheld a Terry stop where the only articulated facts were that the suspect ran while carrying a bag in a high-crime area as a police car drove by. Considering the fairly low threshold for a constitutional stop, it’s all the more surprising that the PPD’s justifications allegedly fall short in so many cases.

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